Arguments to halt Douglas County’s mask exemption in schools land in federal court

Masks in schools took center stage in federal court in Denver Monday, with lawyers for the Douglas County School District asking a judge to halt a mask exemption policy passed earlier this month by the county’s newly formed public health department.

U.S. District Judge John L. Kane didn’t immediately rule on the request for a temporary restraining order but told everyone to be back in his courtroom Tuesday morning to wrap up arguments.

The 64,000-student school district sued the Douglas County Health Department last week on behalf of nine families with children with disabilities, who claim their kids’ civil rights under the Americans with Disabilities Act are being violated by the mask exemption.

Their children have health conditions like asthma, cystic fibrosis, epilepsy, diabetes and Down syndrome that make them more susceptible to more severe illness, or death, should they contract COVID-19, the suit claims. It calls universal masking a “reasonable and necessary” accommodation to let the students “access their public education equally to their non-disabled peers.”

“As a parent, I feel like I’m forced to choose my son’s health and safety over his education, and I think that’s unconscionable,” a mother of a Douglas County 4th-grader with cystic fibrosis testified about the public health order that passed Oct. 8.

The mother, a plaintiff identified in court only as K.G., said allowing parents to send their kids to school without a face covering places her son in greater danger of getting infected with COVID, which could have devastating effects on his already compromised lungs.

“He’s already living a limited life span — we don’t need to limit it any further,” she said.

K.G. was backed by testimony from two doctors, one of whom said at the rate at which the highly contagious delta variant of the virus is racing through Colorado right now, intensive care beds are filling up and kids between the ages of 6 and 11 are seeing the highest rate of COVID-19 cases.

“I’ve never worked so hard or been this tired in my career as I have been in the last two months,” said Dr. Lindsey Fish, an urgent care physician with Denver Health. “We should not try and do harm by not practicing prevention measures.”

The hearing came on the same day an official with the Colorado Department of Public Health and Environment urged restaurants and other businesses to require facemasks and vaccines, and said the state is preparing for the possibility that government action will be needed as coronavirus hospitalizations in Colorado reach their highest point since Christmas.

There were 1,170 people hospitalized with confirmed cases of COVID-19 on Monday.

“As long as that condition exists, we should wear masks,” Dr. David Beuther, a pulmonologist at National Jewish Health, testified Monday. “It’s very much Russian roulette for these kids.”

Douglas County Schools Superintendent Corey Wise testified that 4,700 student mask exemptions have been granted in the last two weeks, along with more than 500 for teachers and staff. He said more than 80% of students in the district are still wearing masks.

Proponents of Douglas County’s mask exemption, which simply requires a parent’s signature stating they feel a mask would have a negative effect on their child, point out that COVID-19 has largely mild impacts on the vast majority of children.

As of Friday, state health data show 21 COVID deaths and 1,453 hospitalizations in the 19 and under age group in Colorado since March 2020. That compares to more than 41,000 hospitalizations and more than 8,000 deaths for the state’s overall population throughout the pandemic.

The mother of an autistic freshman at Mountain Vista High School in Highlands Ranch took issue with the assertion from both doctors during Monday’s hearing that there is no evidence masks are harmful to the wearer. Tonya Cornish told the court that her son, who is non-verbal, relies on seeing people’s faces to function in school and in life.

“He’s constantly looking at my face,” she said. “At school, he’s constantly looking at students’ and teachers’ faces.”

Since masks became widespread in the district, her son has started biting himself and has had to retreat to a “quiet room” at school, as he is unable to communicate with people whose faces are hidden.

“Now he’s regressed — he’s basically at school trying not to escalate,” she said. “He’s not learning.”

In guidance the World Health Organization released last year regarding kids and masks, the agency concluded that children 5 and younger “should not wear masks for source control.” For those ages 6 to 11, the WHO said mask use should be tempered by a number of factors, including the “potential impact of mask wearing on learning and psychosocial development.”

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